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What happens on Facebook, stays on Facebook (when it is subject to a discovery request)

As readers of this blog know, social media evidence, like other electronically stored information, must be preserved when a party “reasonably foresees” or “reasonably anticipates” that it may be needed in litigation. As a New Jersey federal judge recently made clear, attempts to evade this requirement by deleting social media information may result in sanctions.

In Gatto v. United Airlines, Inc., defendants in a personal injury lawsuit sought access to a number of plaintiff’s social networking accounts to find evidence relating to his credibility and his online businesses, which would be relevant to the plaintiff’s damages. Case no. 2:10-cv-01090 (D. N.J. March 25, 2013). At mediation, plaintiff agreed to change his Facebook password so that he could share his account information with defendants’ counsel.

Defendants’ counsel then accessed plaintiff’s account, causing Facebook to alert plaintiff that his account had been accessed by an unknown IP address. The plaintiff then deactivated his account. Whether he then took additional steps to delete his account is a matter of dispute, but this question did not affect the judge’s determination that the plaintiff’s failure to preserve this evidence had prejudiced the defendants.

The judge applied a four-factor test, finding that the social media evidence was in the plaintiff’s control, that there had been an actual suppression or withholding of evidence, that the evidence in question was relevant to the claims or defenses at issue, and that it was reasonably foreseeable that the evidence would be discoverable. The judge accordingly partially granted the defendants’ motion for sanctions, finding that the defendants were entitled to an instruction that the jury may draw an adverse inference against the plaintiff for failing to preserve his Facebook account and intentionally destroying the evidence it contained. The judge denied defendants’ motion for monetary sanctions, however.

This case is a good reminder of the value of requesting social media information in discovery in any case where a party’s state of mind, whereabouts, or communications are at issue. However, although this ruling is helpful to employers looking to obtain social media data, it is an equally important reminder of the need to preserve social media evidence.